On 3 September 2014, the Court of Justice of the European Union issued an important decision regarding the concept of parody in case C-201/13 Deckmyn, a reference for a preliminary ruling from Belgium1.
The background to the Belgian proceedings concerned a calendar that was handed out at the reception held in 2011 by the City of Ghent to celebrate the New Year. The calendar was handed out by Mr Deckmyn, a member of the far-right Belgian political party ‘het Vlaams Belang’. On the cover page of the calendar appeared a modified version of the cover of the comic book ‘De wilde weldoener’ (‘The compulsive benefactor’) of ‘Suske en Wiske’ (Spike and Suzy).
In the original drawing, Lambik is the compulsive benefactor, wearing a white tunic and throwing coins to people who are trying to pick them up. In the revised drawing, Lambik is replaced by the Mayor of the City of Ghent as the compulsive benefactor, and the people picking up the coins are replaced by people wearing veils and people from non-white ethnic groups, some of whom are wearing veils
Taking the view that the revised drawing and its communication to the public constituted an infringement of their copyrights, the heirs of the deceased author Willy Vandersteen and the publisher of ‘Suske en Wiske’ (‘Vandersteen and Others’) brought an action against the Vrijheidsfonds (a non-profit association whose object is to support the Vlaams Belang financially and materially) and Mr Deckmyn (the group leader in Ghent of the Vlaams Belang and the publisher responsible for the calendar) to cease all use of the drawing.
The Court of First Instance granted an injunction to prevent further distribution of the calendar because its cover infringed copyright in the comic book. The decision was appealed before the Brussels Court of Appeal on several grounds, including that the cover allegedly fell within the scope of the parody exception. The Brussels Court of Appeal decided to stay the proceedings and seek guidance from the CJEU regarding the meaning and the scope of the concept of parody.
The notion of ‘parody’ is an autonomous concept of EU law
Firstly, the CJEU held that it is clear from established case law that the concept of parody, which appears in a provision of a directive that does not contain any reference to national laws, must be regarded as an autonomous concept of EU law and interpreted uniformly throughout the EU. That interpretation was not invalidated by the optional nature of the exception mentioned in the Copyright Directive 2001/29.
The essential characteristics of parody
The CJEU then noted that the Copyright Directive 2001/29 gives no definition of the concept of parody. Hence, the parody concept should be determined by considering its usual meaning in everyday language, while also taking into account the context in which it occurs and the objectives pursued by the Copyright Directive 2001/29.
With regard to the usual meaning of ‘parody’ in everyday language, the CJEU held that the essential characteristics of parody are, on the one hand, to evoke an existing work while being noticeably different from it and, on the other hand, to constitute an expression of humour or mockery. Any criticism thereby does not have to apply to the original work.
A parody does not have to be original and does not have to relate to the original work itself
Based on the usual meaning of the parody concept in everyday language and on the wording of the Copyright Directive 2001/29, there are no other conditions according to the CJEU. Accordingly, a parody does not have to be original in its own right, other than to display noticeable differences with respect to the original parodied work. A parody is not subject to the condition that it could reasonably be attributed to a person other than the author of the original work itself, nor does it have to relate to the original work itself or mention the source of the parodied work.
A fair balance between the interests and rights of authors and freedom of expression
The application of the exception for parody must however strike a fair balance between the interests and rights of the right holders and the freedom of expression of the user of a protected work who is relying on the exception for parody. Thereby all the circumstances of the case must be taken into account.
In that context, the CJEU took note of the fact that Vandersteen and Others felt that the modified cover page conveys a discriminatory message, which has the effect of associating the protected work with such a message. If that is the case, which is for the national court to assess, attention should be drawn to the principle of non-discrimination based on race, colour and ethnic origin, and Vandersteen and Others have a legitimate interest in ensuring that the ‘Suske en Wiske’ comic book is not associated with such a discriminatory message.
What is next?
The case will now return to the Brussels Court of Appeal. The Court of Appeal will have to assess whether the modified ‘Suske en Wiske’ cover page falls within the concept of parody as is now very broadly defined by the CJEU and whether it conveys a discriminatory message (which seems to be suggested by the CJEU). In that case, the parody can still be opposed by Vandersteen and Others.